He is reacting to the Obama administration’s decision not to defend section 3 of the Defense of Marriage Act, and to Francis Beckwith’s erroneous comments on that decision.

Before delving into the argument, a few basic facts. DOMA was passed in 1996, and polygamy was illegal without section 3 of DOMA. Striking down DOMA’s section 3 will not change the status of polygamy laws, because marriage laws have generally been a state matter, not a federal matter, and because anti-polygamy laws had been part of federal law since 1882 and are not being challenged. DOMA was unusual in that it imposed a federal standard on marriages, rather than letting states determine their own marriage laws. Striking down DOMA would not change a state’s right to set it’s marriage laws one way or another, including restrictions on plural marriage. (Bizarrely, Beckwith claims that striking down DOMA – a federal law limiting state decisions to recognize same-sex marriage – would mean “bypassing the state law-making bodies that the Constitution empowers to deal with such issues.” This is 180º from the truth.)

Furthermore, the particulars of the policy announced was in response to two court cases, court cases specifically having to do with same sex marriages in states where such marriages may be legally performed, but where such legal and valid marriages are not recognized by the federal government because of DOMA’s section 3. Indeed, the first sentence of Attorney General Holder’s letter announcing the policy makes clear that the administration is has decided not to defend DOMA “as applied to same-sex couples who are legally married under state law, [because it] violates the equal protection component of the Fifth Amendment.” The administration concluded that legal distinctions based on sexuality, as with legal distinctions based on race or gender, deserved heightened scrutiny by the courts. Therefore, AG Holder explains in the 3rd paragraph: “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.”

Why do I emphasize “as applied to same-sex couples” in both of quotations above? Because Beckwith’s argument, which Cothran unthinkingly regurgitates, is premised on the notion that the administration determined: “the entirety of sec. 3 violates the 5th amendment and thus does not withstand heightened scrutiny.”

But no!

They determined that section 3 as applied to same-sex couples violates the 5th amendment. They restricted the scope of their evaluation of the law’s constitutionality to the issue of sexuality and to the gender composition of couples. To conclude that they accidentally opened the door to plural marriage despite having specified that the decision only applies to same-sex couples defies logic.

Cothran, a professional logic teacher, nonetheless insists that his trivially false claims are “logical implications” of the letter. Neither he nor Beckwith links to or quotes from the letter, and neither seems to have actually examined the document.

If you reread my entry (and not just sliver isolated from the whole) with a bit more deliberation, you will see that I was tying the number requirement to a sexual orientation, polyamory. Remember, Holder/Obama is claiming that sexual orientation requires heightened scrutiny, and thus the current definition of marriage violates the 5th Amendment equal protection clause since it can’t pass heightened scrutiny (in their judgment). But polyamory too is a sexual orientation. But the number requirement excludes them from marriage. Thus, heightened scrutiny kicks in and the number limitation violates the 5th amendment as well.

I rewrote the relevant portion of my entry to make my point clearer. The conditional proposition mixed in with inference indicators can be a bit confusing. Just click my name for the entry.

Thanks for your feedback. I didn’t realize how the passage could be misread by someone who is not fully aware of the role “if” plays in a conditional statement. The antecedent, which precedes “if,” is not a separate proposition, but the first half of a hypothetical proposition. But you seem to have read it as an inference indicator. So, I rewrote it to make it crystal clear.

Polygamy is a choice, being gay is an orientation. Laws against polygamy cover gay folks as well as straight folks, your logic trying to equate gay monogamy with straight polygamy wouldn’t appear to reach stage one of logical argument.

Francis: First, my name is “Josh,” not Jason. Second, the link you provide for “polyamory is a sexual orientation” never uses the word “orientation,” so you need to flesh that argument out a bit; you may have a case to make, but standard sources I consulted do not treat polyamory as an orientation (orientation involves what gender you find attractive, not now many of them). Third, polyamory is not the same as polygamy. Fourth and most importantly, the Holder letter does not adopt the position you presented in your “if” clause. This is why I said that your argument was premised on a falsehood.

The Holder letter and DOMA more generally are not about polygamy. They are about the sexes of people in a two-person marriage. It isn’t hard to envision reasons even, under strict scrutiny, for not allowing multiple people to marry one another simultaneously, and the Holder letter never says otherwise. To claim that the Holder letter, which specifically restricts itself to couples, opens the door to polygamy, seems to indicate that you either haven’t read the letter, or that you cannot locate a rational basis for disagreeing with it.

It is delicious irony when someone questions a writer’s credentials as a teacher of logic after beginning a post with an ad hominem attack. And then you proceed to criticize the man’s failure to link to (and presumably) read the original document before referring to the original document’s invocation of the 5th amendment’s guarantee of equal protection. If you can find equal protection in the 5th amendment, I’ll show you a constitutional guarantee that Kentucky logic teachers get to make the rules. It’s the 14th amendment. Perhaps a bit more attention to detail and a bit less spurious invective would serve you well.

Oops, since I called you “Jason” you get one free pass to call me anything you want! :-) My apologies. It was very late and I had finished a talk in Nebraska.

Polyamorites (if I may use that term) believe they are a sexual orientation. If one is the sovereign of one’s own self-understanding, then it seems to me that we should take such folks seriously. If we have citizens who believe they are “women” trapped in a “man’s body” and we accord them a level of deference, then why not polyamorites.

Anthony writes: “Polygamy is a choice, being gay is an orientation. Laws against polygamy cover gay folks as well as straight folks, your logic trying to equate gay monogamy with straight polygamy wouldn’t appear to reach stage one of logical argument.”

Polyamory (which is not the same as polygamy, since polygamy is a type of marriage and polyamory is a type of love), to those who experience it, seems perfectly natural to them. (See my link if you click “polyamorous” in my first comment).

The right analogy then should be polygamy/same-sex marriage and polyamory/same-sex attraction. Concerning the first two, they are clearly choices. One is not forced to marry, per se. But in terms of attraction, that sort of bubbles up in the person and does not seem to be under a person’s immediate control.

The only analogy you can make is gay monogamy for straight monogamy and gay polygamy for straight polygamy. That is unless you are going to equate straight monogamy for straight polygamy.

The marriage of a gay person who marries someone of the opposite sex is not the same thing as a heterosexual who marries a member of the opposite sex, on the basis of sexual attraction and, very likely, the difference in the chances that the marriage might endure.

You are trying to draw phony equivalences to support bigotry. I could as easily say that a straight man marrying a woman is equivalent to a straight man marrying a female dog. Which is the kind of argument your side of the issue constantly makes against my civil rights.

Mark: First, it isn’t an ad hominem. I’m not saying he’s wrong because he’s a bigot (which would be ad hominem), I’m just saying he’s defended bigotry before, so let’s not be surprised that he’s defending bigotry now. It’s context-setting. Getting details wrong right off the bat is a poor way for you to start a comment chiding me for inadequate attention to detail.

Second, my only reference to the 5th amendment was in a quotation from the Attorney General’s letter. You can disagree with it, but you aren’t disagreeing with me. So again, you substituted invective for attention to detail, which is amusing.

Substantively, the Attorney General is relying on a line of Supreme Court precedent reaching back to Bolling v. Sharpe 347 U.S. 497 (1954) which holds that the 5th amendment guarantee of due process (with respect to federal laws) must be co-extensive with the protections of the 14th amendment’s equal protection clause (which a detail-oriented person would know only applies to the states). The Court there argued, quite plausibly, that it is “unthinkable that the same Constitution [which required equal protection from the States in Brown v. Board of Ed.] would impose a lesser duty on the Federal Government.”

Francis: You keep saying “polyamorites” – I think they prefer “polys” – consider themselves to be a sexual orientation, but you haven’t actually presented evidence of a single poly making that claim. You linked a statement before, but as I said before, that statement doesn’t present polyamory as an orientation. I checked standard sources and saw sexual orientation defined in terms of which gender one is attracted to, not the number to whom you are attracted (e.g. Wikipedia calls polyamory a “relationship orientation”). You have neither shown any contrary source, nor explained why you think your link justifies the claim.

But to move forward, here’s my question: If you defend (as I believe I’ve seen you do) the position that same-sex marriage should be blocked because it is at odds with “traditional” marriage, especially marriage as understood in the Jewish and Christian traditions, how can you logically oppose polygamy? I mean, Biblical marriage traditions are often polygamous. While a case can easily be made that same-sex marriage isn’t within the Biblical tradition, I don’t see how that argument can be made about polygamy. Indeed, it would seem like a return to Biblical tradition would require recognizing such marriages in law. To be clear, I do not advocate a return to some mythical norm of “traditional marriage,” and I don’t see any reason to legalize polygamy, I’m just exploring your argument.

If you want a long form, “polyamorist” is better than “polyamorite.” Not really liking either form, or plurals in -ys, I tend to stick the adjective: I’m poly, not “I’m a poly.”

I don’t think being poly or monogamous, or being able to be happy in either kind of relationship, is a sexual orientation. It’s at the part-of-identity level for some of us, but that doesn’t make it a sexual orientation, any more than being American or Dutch or Indian is a sexual orientation.

I speak only for myself, obviously, but I think I’m the only person on this thread who is in fact polyamorous. That might be worth something.

It would be nice to be able to get some legal recognition for all our serious relationships, but while I know people who are hoping that acceptance of same-sex marriage will make it easier, few if any are claiming that it’s a necessary consequence legally. For example, the Massachusetts court ruling that established same-sex marriage there specifically refers to couples.

There would also be legal angles to address that don’t come up with same-sex marriage: if I have two spouses, they would pretty clearly be my joint heirs if I didn’t have a will. But are they each other’s heirs? Could I marry my girlfriend without my husband also marrying her? Should I designate one as primary for medical decision making, or do we assume they’ll agree, as we mostly assume for married parents of minor children?

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About TfK

Joshua Rosenau spends his days defending the teaching of evolution at the National Center for Science Education. He is formerly a doctoral candidate at the University of Kansas, in the department of Ecology and Evolutionary Biology. When not battling creationists or modeling species ranges, he writes about developments in progressive politics and the sciences.

The opinions expressed here are his own, do not reflect the official position of NCSE. Indeed, older posts may no longer reflect his own official position.